Bill Acceptance Corporation Ltd v GWA Ltd

[1982] FCA 269

is.- ?,&q

, -2

IN THE FEDERAL COURT OF AUSTRALIA

1

SOUTH	AUSTRALIAN	DISTRICT	REGISTRY	)	No.	G 2 5 of	1 9 8 2
1

GENERAL D I V I S I O N l

On	appcal f r o m a s i n g l e Judge 01
t hc Federal	C o u r t oE A u s t r a l i a
BETWEEN :
ABORIGINAL	DEVELOPMENT

COMMISSION

A p p e l l a n t

AND :	~
RALKON  AGRICULTUFWL COMPANY P T Y .
1,IhlITED

R e s p o n d e n t

O R D E R

JUDGES :  Fox J . , l l r o o d w a r d J. and Toohey J .

DATE OF ORDER: 1 ( J N o v e m b e r 1 9 8 2

WHERE MADE : A d e l a i d e

THE COURT ORDERS THAT:

The appcal be d i s m i s s e d w i t h cos t s

- .. .

- .

IN THE FEDERAL COURT OF AUSTRALIA ) .

GENERAL D I V I S I O N 1

On appeal f r o m a s i n g l e Judge of

the Federa l C o u r t of A u s t r a l i a

BETWEEN :

A B O R I G I N A L	DEVELOPMENT
COFLVISS ION

Appellant

AND :

-

RALKON AGRICULTUP\AL COMFANY PTY.

LIMITED

Respondent

REASONS FOR JUDGNENT

FOX J . , 1VOODWRD J . and TOOHEY J.

This i s an appeal f rom a d e c i s i o n o f 111s Honour

Mr, Jus t ice Keely in which he ex tended the time a l lowed

€or t h e making o f an app l l ca t lon unde r the Admlnis t ra t ive

Decisions (Judicial Review) Act 1 9 7 7 ("the Judic la l Revlew

-	Act"),	f o r an o rde r	o €	review, and dlsmissed an object lon
to the	competency	o f	t h e a p p l i c a t l o n t h e n	made.

L.

The b a s i s o f t h e o b ~ e c t i o n t o competency was

t h a t t h e a p p l i c a n t was not a person who was aggrieved

by the cha l lenged dec is ion wi th in the meaning o f

ss . 5 ancl 6 o f t h e J u d i c i a l Revlew Act. Before us it was

conceded	by	counsel	f o r	t h e a p p e l l a n t	t h a t	t h e a p p l i c a n t
was	a	"person	a g g r i e v e d " , a n d	t h e o b ~ e c t i o n	t o	competency

was as a consequence abandoned. Counsel a t t h e same time

wishcd	t o make	c l e a r t o	us	h i s s u b m i s s i o n	t h a t	t h e
applicant	was	n o t	i n	f a c t a d v e r s e l y a f f e c t e d	by	t h e

dec is lon because i t d i d n o t impinge on any l eg i t ima te

c la im o r r l g h t t h a t t h e a p p l i c a n t h a d .

This conten t ion 15, however, subsumed i n t h e

remain	lng pr inc ipa l ground of appea l , namely tha t h i s
Honour	wrongly exerc ised h ls d i scre t ion because the

appl ica t ion could not succeed , and therefore , as counse l

pu t i t , to ex tend t ime fo r making it was a f u t i l i t y .

The case concerns a d e c i s i o n by the Abor ig ina l

Development Commission, e s t ab l i shed unde r the Abor igmal

Development	Commission	Act	1 9 8 0 ,	t o g r a n t	a	l e a s e	o f
l and	t o	t he	Po in t	IkLeay	Community Council .	An	o f f e r t o

g r a n t t h a t l e a s e was made on 2 3 March 1 9 8 1 and t h i s has

been t r ea t ed a s t he dec i s ion unde r cha l l engc . In f a c t ,

thc Poin t FlcLeay Community Counci l for several months

ac t ive ly opposed the gran t t o i t of the lease and favoured

a g r a n t t o t h e p r e s e n t applicant, which now conducts, and

a t a l l ma te r l a l t imes had conduc ted , Ea rmmg ope ra t lons

on t h e s u b ~ e c t l a n d . The P o m t FlcLeay Conununity Council

1s n o t a p a r t y t o t h e a p p l i c a t l o n .

The grounds 01 f u t i l l t y a l l e g e d a r e :

( a ) t h a t , a s m a t t e r s s t a n d , no l e a s e of t he l and

can cons i s t en t ly wl th the	Act	b e g r a n t e d t o
the	app l i can t ;	and

( b ) t h a t t h e l e a s e h a v i n g b e e n r e g l s t e r e d , t h e

t i t l e o f t h e P o i n t irkLeay Community Council

15,	a s	it has been	sa id ,	i nde feas ib l e .
We	have	l i s t ened	w i t h	a t t e n t l o n t o t h e c a r e f u l

arguments o f counse l bu t are o f t h e v i e w t h a t t h e m a t t e r s

r a l s c d do n o t c o n s t i t u t e a b a s i s f o r i n t e r f e r i n g w i t h t h e

e x e r c i s e o f h i s Honour's d i s c r e t i o n . I t i s important t o

emphas l se	t ha t	t he	appea l ,	a s	i t has	developed,	is
a g a i n s t	a	d e c l s i o n	oi	a	procedural nature , where	the	Judge

has a d l s t m c t d i s c r e t i o n .

An a p p e l l a t e c o u r t m u s t b e p a r t i c u l a r l y c a u t i o u s

In upse t t i ng such a d e c i s i o n . In f a c t , wc f i n d o u r s e l v c s

In agreement with the conclusion reached by the l ea rned

Judge in this case. The submission is in cffcct that the applicant cannot succeed in his appllcation. To entertaln such a submisslon, going to substantive matters in thc

course of an appllcatlon to extend tune, 1 s plainly fraught

with risk. Some arguments presentcd on behalf of the
respondent may be aflected by evidcnce, or even by change
of circumstances. Quest3ons o f law are raised which are

best dealt wlth on a hcarlng.

This is not a case in which it is clear that the

application must fail or that any orders made by the Court,

if the appllcation succceds, would necessarily be futlle.

In putting the matter this way WC may of course be doing

less than justice, perhaps much less than justice, to the

applicant's case, but we have not heard its counsel.

It was contended also that there had been undue

delay in making the application for an extension of time,

but in our new this contention does not succeed. The

lease was not granted until J L I ~ ) ~ 1981 and a demand f o r

possession of the land was not made until September 1981.

His Honour, as it seems to us, had regard to these and

all other relevant clrcumstances, and WC can find no basis

for interfering with the exercise of his discretion.

IVe t h e r e f o r e a r e o f t he v i ew tha t t he appea l shou ld be

d l smls sed , w i th cos t s , and t h a t 1s t he o rde r wc make.

I certify that this and the precedmg

four (4) pages are a true copy of the

judgment of their Honours Mr. Justice

Fox, Mr. Justice Woodward and Mr.

Justi ce Toohey.

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Associate

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